The Sixth Circuit U.S. Court of Appeals issued a decision this week that local government officials can be held liable for accusations they make against citizens when it is "reasonably foreseeable" that their statements will cause the citizen to be fired from their job. Martha Paige worked as an accountant for Bunnell Hill Development Company in Warren County, Ohio. She and her husband owned a large farm in that county. When Paige learned about a proposed road project that would interfere with their farming, she organized the Residents' Association of West Central Warren County. On August 6, 2007, Paige attended a public meeting of the Warren County Port Authority. Kimberly Coyner is executive director of the Port Authority. Before the meeting started, Coyner asked Paige about where she worked, and Paige disclosed that she worked for Bunnell Hill. During the meeting, Paige identified herself as president of the Residents' Association, and expressed concerns about an interstate project. Paige alleges that on August 13, 2007, Coyner called Bunnell Hill and told a manager that Paige identified herself as speaking for Bunnell Hill. On August 16, 2007, Bunnell Hill fired paige for using the company name to oppose the interstate project, and disclosed Coyner's call as a basis for the termination.Continue Reading...
This week, the Legal Intelligencer reports on how some employers are routinely investigating the social network sites (SNSs) of employees who make claims against them. Called "How Facebook Can Make or Break Your Case," the article is mostly about how Facebook posts can make the employer's case and help break the employee's.Continue Reading...
Student Paresh Dave of the Annenberg School of Communication and Journalism at the University of Southern California (USC) has written an incisive story about how national security whistleblowers can protect themselves while blowing the whistle on misconduct by government officials. Dave's story is called, "Whistleblowers Have Some Protection, If They Leak To The Right People." He notes that the government is currently investigating detained Specialist Bradley Manning to see if he could be the source for the WikiLeaks.org release of 91,000 classified State Department cables. Dave spoke with me about my prior blog post about how Manning might have protected himself if he had consulted a lawyer before blowing the whistle on the unnecessary civilian casualties of the wars in Iraq and Afghanistan. If he had learned about the Military Whistleblower Protection Act, 10 U.S.C. § 1034, he could have made his disclosures to members of Congress and preserved a legal defense to the impending charges.Continue Reading...
House Speaker Nancy Pelosi has announced plans to bring the Oil Spill Response Bill to the House floor for passage. The Washington Independent is reporting that the bill will include the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, which, “provides whistleblower and anti-retaliation protections to workers on the Outer Continental Shelf” and “protects worker safety by improving federal agency coordination.” The text of this bill is available here. From my read, it includes most of what we call the "gold standard" protections for whistleblowers. It will protect oil and gas workers when the raise concerns about compliance with the Outer Continental Shelf Lands Act, or any concerns about illness, injury or unsafe conditions. It would protect reports made in the course of performing duties, and protect refusals to violate the law. It would provide a right of action through the Department of Labor, a 180-day statute of limitations, a contributing factor standard for proving causation, and a "clear and convincing evidence" burden for employers who claim they would have fired the whistleblower even if protected activity was not considered. If the Department of Labor has not issued a final order within 300 days, whistleblowers could go to U.S. District Court and ask for a trial by jury. One provision that is missing (but was added to SOX in the Dodd-Frank Act) is a provision specifically barring enforcement of pre-dispute arbitration agreements. It does provide that, "The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment," but this might not be enough to keep courts from enforcing arbitration agreements, as they are keen to do. It would be a good day for oil and gas workers, and for everyone who cares about the environment we leave for future generations, if this bill would pass. It would be an even better day if the House adds the Dodd-Frank anti-arbitration language.
President Obama recently nominated Robert E. O’Neill to serve as U.S. attorney for Florida’s Middle District, one of the country’s busiest regions. The nomination will be reviewed by the Senate Judiciary Committee in the coming months and will need to be approved by a vote of the full Senate. However, there are questions regarding his nomination based on O’Neill’s alleged involvement with whistleblower retaliation.
Between 1999 and 2003, O’Neill was former federal prosecutor Jeffrey J. Del Fuoco’s supervisor. Del Fuoco was in charge of investigating a corrupt Manatee County, Florida sheriff, Charles B. “Charlie” Wells, and an elite group of his deputies known as the Delta Squad. Then Assistant U.S. Attorney O’Neill gave Del Fuoco a glowing review, stating he “was able to demonstrate the legitimacy of the investigation and the fact that the corruption was rampant.”
CNBC released a story yesterday about the qui tam provisions of the new Dodd-Frank Act, the financial reform law. They call the whistleblower provisions "little-noticed," indicating that we here at the National Whistleblowers Center (NWC) still need to do a better job of informing the media about new developments in whistleblower protection.
In the article, NWC Executive Director Stephen M. Kohn tells CNBC, "If the law works, whistleblowers should be rewarded with millions of dollars. Those whistleblowers will save investors billions and billions of dollars." CNBC notes that the new provision could have helped whistleblowers like Harry Markopolos who tried in vein to get the Securities and Exchange Commission (SEC) to act against Bernard Madoff. If Dodd-Frank was in place then, Markopolos could have filed a qui tam claim, stopped Madoff's ponzi scam, and collected a portion of Madoff's ill-gotten gains. CNBC commented that NWC's seminar last Friday shows that lawyers are "chomping at the bit" for a share of the recoveries.Continue Reading...
The Occupational Safety and Health Administration (OSHA) has announced that it will hold a live web chat tomorrow from 3:00 to 4:00 p.m. (Eastern) to discuss OSHA's new safety rules for cranes and derricks used in construction. Interested parties can access the web chat by visiting http://www.dol.gov/dol/chat.htm tomorrow at 3:00 p.m. Cranes and derricks have been a perennial danger on construction sites, and improved safety standards will be a welcome development. The new standards will be even more effective if Congress passes the Protecting America's Workers Act (PAWA), HR 2067, so that workers will own their own retaliation claims if they insist on following the new rule and suffer retaliation as a result. The full OSHA statement announcing the web chat follows in the continuation of this entry.Continue Reading...
On Friday, July 23, 2010, the National Whistleblower Center (NWC) hosted a seminar on the False Claims Act that included a special presentation on the Dodd-Frank Wall Street Reform and Consumer Protection Act that was recently signed into law. Stephen M. Kohn, Executive Director of the National Whistleblower Center, gave the presentation on the new financial regulations and whistleblower protections outlined in the new law.Continue Reading...
National media is abuzz today with the release by WikiLeaks.org of 91,000 classified State Department cables about the war in Afghanistan. WikiLeaks.org also disclosed that it had previously released the cables to The New York Times, the Guardian of London, and Der Spiegel to help it review the documents for newsworthy information and to screen out information that could cause harm if disclosed. According to a Washington Post story, WikiLeaks.org founder Julian Assange called the release, "the nearest analogue to the Pentagon Papers." Indeed, the cables detail the extent of assistance the Taliban have received from Pakistani intelligence officers. They show the debilitating demands faced by soldiers on the field, and the extent of civilian casualties and waste in this protracted war. It does sound more and more like Vietnam. Truth is the first casualty of war, and whistleblower leaks are the best medicine.
Justice Department Considering Using False Claims Act to Recover Losses in Deepwater Horizon Disaster
FCA Legal Actions Could Result in BP Paying Treble Damages To United States Taxpayers
Sixth Circuit sees "injustice that threatens the purposes" of the STAA and reinstates whistleblower case
I am pleased to announce that today the Sixth Circuit U.S. Court of Appeals has reversed a decision of the U.S. Department of Labor's Administrative Review Board (ARB) and reinstated the whistleblower claim that my client Harry Smith made against the trucking company CRST. In the photo, Harry Smith stands between his wife and fellow truck driver Scooter McNutt. Smith was fired right after he threatened to take the company's defective trailer to the Department of Transportation for inspection. The Department of Labor had dismissed Smith's complaint against CRST after the Occupational Safety and Health Administration (OSHA) sent him a dismissal notice, showing that a copy was sent to me, his lawyer. However, OSHA did not actually send me the copy of the dismissal notice until after Smith's time to appeal had expired. Smith does not recall receiving the dismissal notice at all. CRST and the Department of Labor (DOL) tried to blame Smith for failing to appeal on time. The Sixth Circuit says today that, "it appears to us that it falls even more heavily at the feet of OSHA, in failing to send the notice to Renner for some two months after the fact, despite the indication to Smith to the contrary."Continue Reading...
Yesterday, the Seventh Circuit U.S. Court of Appeals affirmed a reinstatement order from the Department of Labor's Administrative Review Board (ARB). The decision keeps truck driver Peter Cefalu on the job driving for Roadway Express. The Seventh Circuit considered a previous appeal by Roadway Express and decided that the company deserved a chance to prove that it would be unsafe for the public to reinstate Cefalu. In that case, called Roadway Exp., Inc. v. United States Dep’t of Labor, 495 F.3d 477 (7th Cir. 2007), or Roadway I, the Seventh Circuit held that the ARB properly barred Roadway from using information about Cefalu's driving record with previous employers. Since Roadway refused to disclose the source of the information, after a judge ordered it to make this disclosure, the Court held that the limit on its ability to use the information was reasonable. However, the Court also held that an employer should not be compelled to reinstate a driver if the employer would have fired the driver anyway for being a safety risk even if that driver had engaged in no protected activity. On remand, the Department of Labor found that Roadway could not prove that it would have fired Cefalu in the absence of his protected activity. Roadway fired Cefalu in 2002 after he submitted an affidavit to support another driver in a grievance hearing. Cefalu's affidavit explained how management had instructed him to falsify his logbook of the hours he drove. Now, the Seventh Circuit makes clear that it wants to respect the automatic reinstatement provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105(b)(3)(A). It will recognize an exception only when reinstatement would compel a company to employ an "incompetent or unqualified employee." It also made clear that the employer has the burden of proving this exception to reinstatement. I note that STAA requires the employer to prove its same-decision defense by "clear and convincing evidence." Congratulations to my friend Paul Taylor on prevailing in this case after eight (8) years of vigorous opposition.
The curriculum for our upcoming seminar titled “Integrating the False Claims Act into Your Law Practice” has been updated to include a presentation on the on the numerous whistleblower provisions contained in the new Dodd-Frank Wall Street Reform Act.
It is approved for CLE credit in Pennsylvania and Ohio for attorneys who choose to attend the seminar in our offices in Washington, D.C. Attorneys also have the option to attend via teleconference, but not for CLE credit.
Date: Friday, July 23, 2010
Time: 12:00 p.m. - 3:00 p.m. EST
Public interest groups have scheduled a town hall meeting to discuss legislation designed to protect miners and other workers from injury and disease. It is scheduled for next Tuesday, July 27, 2010, at Unitarian Universalist Church of Arlington, 4444 Arlington Boulevard, Arlington, Virginia, from 7:00 pm to 8:30 pm. A flyer is available here. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, is scheduled to speak. The purpose of the town hall meeting is to build support for H.R. 5663, the Robert C. Byrd Miner Safety and Health Act. This legislation would expand and improve workplace safety laws by strengthening both the Mine Safety and Health Act (MSHA) and the Occupational Safety and Health Act (OSHA). We posted a previous notice about this bill here.Continue Reading...
Last month, we posted here our letter to the U.S. Department of Justice calling on them to exercise their power under the False Claims Act (FCA) to hold oil companies accountable for misleading the government and the American people about their ability to clean up oil spills. Today we received an answer. Assistant Attorney General Tony West has written to us to say, "that the Department of Justice is dedicated to recovering any losses it sustains as a result of the oil spill, and is considering all avenues for redress against the potentially responsible parties." Mr. West's letter goes on to express the Department's appreciation of the False Claims Act and the role whistleblowers play in helping the government recover funds fraudulently obtained:
The Deparment appreciates the important contributions of relators in assisting the United States to recover taxpayer funds under the False Claims Act's qui tam provisions. This public-private partnership has proved a successful tool for the recovery of public funds and for rewarding relators who bring allegations of fraud to the government. Indeed, since January 2009, more than $3.6 bilion was obtained under the Act's qui tam provisions, and relators were awarded more than $497 million for their efforts in helping the government pursue these recoveries.
More and more employers are investing in devices that can track their employees with the Global Positioning System (GPS). Pagers, cell phones and other devices can include GPA tracking. Employers can use the available information to record delivery times, travel speeds, hours of work and employee locations. The Baltimore Sun reported this week about how the local police department is using an officer's BlackBerry tracking in the investigation of an officer accused of sexual assault. The department spent $3.5 million in stimulus money to issue the devices to its officers, and it is now using them to assess the alleged victim's claims. Some trucking companies are using the data to corroborate a driver's logbook, but others avoid using any devices that could interfere with drivers who are pressured to drive longer than allowed and then keep a "legal" log instead of an honest one. My friend David Marshall of Katz, Marshall & Banks, LLP here in Washington reports that he once used an employer's GPS tracking information to compute a client's hours of work and win an case for unpaid overtime. I can imagine this new technology creating both opportunities and risks for whistleblowers. In transportation, for example, knowing that the employer has GPS tracking information may pressure some employees to blow the whistle on supervisor pressure to drive too fast or too far. Keep in mind, the employer will own this information and may chose to use it selectively. Workers who do what they are told without asking questions may have their violations overlooked. Whistleblowers may be cherry picked for discipline. Unions may ask for equal access to GPS data during the investigation of grievances or in collective bargaining. Whistleblowers may seek the data in discovery to prove employer knowledge of violations, or to show disparate treatment. Some devices, including cell phones, can be active even when they are turned off. Of these, some may be disabled by removing the battery. Whistleblowers need to be familiar with the technology assigned to them and mindful of how they and their employers can use it.
Last week, I posted here an amicus brief for the U.S. Department of Labor's Administrative Review Board (ARB) explaining how the Sarbanes-Oxley Act (SOX) protects corporate whistleblowers employed by the subsidiaries of publicly traded companies. What a difference a day makes. With President Obama's signature today on the Dodd-Frank Wall Street Reform Act, SOX is now amended to explicitly protect the employees of subsidiaries. What is more is that Senate Report 111-176 makes clear that the amendment was intended to restore SOX to the broad scope originally intended, and that defenses based on subsidiary status should now be unsuccessful. The National Whistleblowers Center (NWC) has now filed a supplemental letter brief with the ARB in its test case of Carri Johnson v. Siemens Building Technologies, Inc., ARB Case No. 08-032. The letter brief makes clear that the Dodd-Frank Act firmly establishes that SOX has always covered the employees of subsidiaries. NWC Executive Director Stephen M. Kohn led our work on this letter, with myself and NWC intern Margot Weisberg. The ARB, meanwhile, has invited supplement briefs on the effect of the Dodd-Frank Act on subsidiary coverage under SOX. The ARB has allowed an additional ten (10) days for these briefs, but ours is already filed.Continue Reading...
Officers Donald Smalls, William James, Frazier Caudle, Nikeith Goins and Sholanda Miller worked for the Metropolitan Police Department (MPD) here in the District of Columbia. They worked for Lt. Ronald Wilkins of the First Division vice squad. In Feburary 2006, these five African-American officers filed anonymous charges of race discrimination against Lt. Wilkins. Four days later, management announced that everyone in that squad would have to reapply for their jobs. These five who complained received new assignments in less desirable units. After an 11-day federal court trial, a jury has found that MPD management acted in retaliation. It awarded two of the officers $250,000 each and another two $200,000 each. Spencer Hsu has released an article about the verdict in today's Washington Post. In the article, D.C. Council member Phil Mendelson raises a concern about an increasing number of whistleblower claims made in the Department. He is also concerned that District officials are choosing to resist the retaliation claims instead of settling them. Congratulations to attorney Jennifer Klar of the Washington law firm of Relman, Dane & Colfax, for representing the officers in this victory. The District has announced that it plans to appeal.
Investigative journalist Myron Levin, writing for FairWarning.org, has found that the Occupational Safety and Health Administration (OSHA) dismisses about 80% of its whistleblowers cases. Levin founded FairWarning.org to be an online nonprofit publication covering workplace safety, health, and employer conduct issues. Of the 279 cases brought to OSHA's whistleblower protection office, Department of Labor attorneys filed a mere 32 lawsuits on behalf of employee whistleblowers. OSHA investigators are sometimes frustrated that despite the outstanding merits of a given case, solicitors will only pursue the “slam dunk” cases that are sure to win.
OSHA's Whistleblower Protection Program is supposed to protect the right of employees to report workplace violations without retaliation. However, in the past 14 years the program has achieved little, as the assurance of whistleblower protection through the program appears to have fallen far short of a guarantee. Workers on the job just have no assurance that they will be protected if they raise a concern about a danger to health or safety.Continue Reading...
On the eve of former Scott Bloch’s criminal sentencing hearing, Dave Nolan hoped to send a message to President Obama; the Office of Special Counsel needs change, too. Scott Bloch is scheduled to be sentenced today, July 20th, for withholding information from the House Oversight and Government Reform Committee about having files on his computer professionally deleted in 2006. Under the terms of Bloch’s plea, he could receive up to six months in prison and a $5,000 fine.
Photo: Dave Nolan and NWC Intern Kevin HeadeContinue Reading...
President Obama is scheduled to sign the Dodd-Frank Act tomorrow to enact the most significant reforms of our financial system in generations. Lawyers are already assessing some of those reforms, and we are focused on the new provisions for whistleblowers. My colleague, Lindsey Williams (Advocacy Director of the National Whistleblowers Center) already reported here on the substantive provisions of the new law. Yesterday the National Law Journal released an article with legal analysis of the whistleblower provisions. Management lawyers, including Richard Cassin of Singapore, are bemoaning the liability companies will face, and the change in incentives that will encourage insiders to become whistleblowers for the rewards provided by the new law. My friend Jason Zuckerman (pictured) of The Employment Law Group told the National Law Journal, "This new monetary reward program should encourage employees to blow the whistle and put more pressure on the SEC to conduct real investigations that would lead to appropriate accountability." He also expresses appreciation for the closure of loopholes in the Sarbanes-Oxley Act (SOX) and the False Claims Act (FCA). I do too.
This morning the Washington Post published the first of a three-part series on “Top Secret America.” The series is a culmination of a two-year investigation into America’s post 9/11 intelligence community. I, like most Americans, knew that the intelligence community was large, but I was still shocked to see the sheer numbers of agencies, employees, facilities, and money being spent. The article explains how this mammoth bureaucracy continues to grow even though most of its inefficiencies can be traced to being too large to manage – one agency does not know what other agencies are doing.
The most disturbing part is that there is little to no accountability for these agencies. One can argue that if it is human nature that if you think no one is watching you are going to take a cookie out of the jar, then pretty soon you are going to walk away with the whole jar and not even think twice about it. The employees who have the guts to stand up and object are quickly squashed with little to no recourse. The authors of the article even point out that most officials they spoke to requested anonymity because “they feared retaliation at work for describing their concerns.” These officials were not disclosing classified information, they were simply criticizing the management of their agencies.
(Cartoon Credit: 2002 Pittsburgh Post-Gazette)
Ed O'Keefe of The Washington Post is quoting Stephen M. Kohn, Executive Director of the National Whistleblowers Center, in a story appearing on today's Fed Page. Called, "Immigration agency assailed over leak probe," the story reports on criticism the immigration service is getting from the American Federation of Government Employees (AFGE) Local 118. AFGE is upset that management at the immigration service is conducting a witch hunt for whoever leaked to The Washington Post an email about quotas for arrests of undocumented immigrants. The investigation has focused on an agent who has an Asian last name, apparently because the Washington Post reporter also has an Asian last name.
Kohn told O'Keefe that the backlash for President Obama on prosecuting whistleblowers is less than it would be since Obama is a Democrat. "It mutes the criticism," Kohn said. Kohn also said that whistleblowers face more risk since the president has not yet appointed a Special Counsel to protect them. Rep. Darrell Issa (R-Calif) told O'Keefe that he is calling on the president to appoint top leaders for 15 inspector general offices that still lack permanent leadership. Rep. Issa's letter is available here.
O'Keefe's story also mentions other whistleblowers facing prosecution by this administration. These include Thomas Drake who used to work for the National Security Administration (NSA). The article also mentions concern about the Internal Revenue Service failing to issue any whistleblower rewards, but neglects to mention Bradley Birkenfeld who is still in jail after delivering to the U.S. government information that helped collect $20 billion in unpaid taxes.
From the Occupational Safety & Health Portal of Kazan, McClain, Lyons, Greenwood & Harley, PLC:
HR 5663 [The Miner Safety & Health Act makes a number of improvements, providing additional tools to ensure that OSHA and MSHA can properly enforce OSH law and keep workers safe.
Specifically, HR 5663 would increase protection for workers covered by the OSH Act by:
In April, I wrote here about the request of the Department of Labor's Administrative Review Board (ARB) for amicus (friend of the court) briefs on whether the Sarbanes-Oxley Act (SOX) protects employees of subsidiaries. The National Whistleblowers Center (NWC) joined with the National Employment Lawyers Association and the Government Accountability Project to submit an amicus brief as requested by the ARB. That brief is now available here. The brief argues that the language Congress originally used, and the legislative history and context (can you spell Enron), make clear that SOX protects all employees of all subsidiaries of publicly traded companies. I want to thank Michael T. Anderson of Murphy Anderson in Boston for his insights and talent in helping with the writing of this brief and the final edits and production (while I was busy with another matter). I also appreciate the contributions of Ann Lugbill, Rebecca Hamburg, Karen Gray and Jason Zuckerman. As noted in yesterday's blog entry, Congress has now amended SOX to make explicit what it had always intended. Still, many SOX whistleblowers have cases pending that are affected by the ARB's determination of this legal issue. Best wishes to Carri Johnson whose SOX case before the ARB will be the test case to resolve this issue.
The Wall Street Reform and Consumer Protection Act (H.R. 4173) passed 60-39 by Congress today includes a number of provisions designed to protect employees who report fraud in the commodity and stock exchanges. This is one of the most important whistleblower laws ever passed.
Although this bill is historic, it is important to note that these protections are for private employees. There is still work to be done to pass H.R. 1507, so that federal employees may also come forward to report waste, fraud and abuse without fear of retaliation.
The NWC has compiled the sections of this bill that pertain specifically to whistleblowers with a one-sentence summary of each (see below). Additionally, the NWC's upcoming seminar, scheduled for July 23, 2010, has been updated to include a presentation of the whistleblower provisions in the Wall Street Reform Act. To register, click here.
23(A) - qui tam for whistleblowers under the Commodities Exchange Act
23 sub (H) - anti-retaliation provision, which permits whistleblowers to go to federal court if they are retaliated against for filing fraud claims under the Commodities Exchange Act
21F(a) qui tam for securities fraud: new qui tam rewards and incentives for whistleblowers who blow the whistle on securities violations
21F sub (H)(1) anti-retaliation provision for employees who file qui tam claims under securities law
(H)(1)(A)(iii) anti-retaliation for employees who make disclosures under SOX, any violation of SEC art or who make protected disclosures under obstruction of justice act
Claims filed in federal court - employees entitled to double back pay
(B) statistical ratings organizations (Moody's & Standard & Poor's) now protected under SOX anti-retaliation provisions (C) SOX whistleblower protection act enhanced and amended to increase the statute of limitations, guarantee jury trials, and prohibit mandatory arbitration agreements
Section 923 - Conforming amendments
Section 924 - SEC regulations to establish special whistleblower office and impose regulations enforcing whistleblower rules.
Section 929A - SOX anti-retaliation law is clarified to ensure subsidiaries of publicly traded companies are fully protected under the whistleblower protection law
Section 966 - Federal employees are losers under the Act and regulators obtain no protections except a glorified "suggestion box"
Section 1057 - New whistleblower protection for employees who make disclosures to the newly created consumer protection board
Section 1079B - Amends the False Claims Act anti-retaliation law to provide for universal national 3 year statute of limitations to file wrongful discharge claims under the False Claims Act.
*Meryl Grenadier (NWC Fellow) drafted this post.
David J. Graham, M.D., M.P.H., is a drug safety whistleblower working at the Food and Drug Administration (FDA). On November 18, 2004, Dr. Graham testified before the U.S. Senate Committee on Finance about Merck's withdrawal of the popular anti-inflammatory drug Vioxx. He testified that FDA policies could not protect the public from drugs with unacceptable risks. "I would argue that the FDA, as currently configured, is incapable of protecting America against another Vioxx. We are virtually defenseless." His words ring prophetic today as the FDA's Joint Meeting of the Endocrinologic and Metabolic Drugs Advisory Committee and the Drug Safety and Risk Management Advisory Committee convenes at the Hilton Hotel in Gaithersburg, Maryland. Dr. Graham is scheduled to speak at 3:00 pm today on "Risk of Acute Myocardial Infarction, Stroke, Heart Failure, and Death in Elderly Medicare Patients Treated with Rosiglitazone [Avandia] or Pioglitazone." Dr. Graham and one of his FDA colleagues, Kate Gelperin, have previously called for the popular diabetes drug Avandia to be pulled from the market. Their study of the drug found possible evidence of an increased incidence of mortality.
Dr. Graham's research has helped protect the public from other unsafe drugs, including Omniflox an antibiotic, Rezulin, a diabetes treatment, Fen-Phen and Redux, weight-loss drugs, and phenylpropanolamine, an over-the-counter decongestant, Lotronex, Baycol, Seldane, and Propulsid.
A story in today's New York Times discloses that Avandia's maker, GlaxoSmithKline, knew about Avandia's heart attack dangers since 1999. Coincidentally, the Los Angeles Times is reporting today that GlaxoSmithKline ill pay $460 million to settle claims by Avandia victims. The LA Times reports that this is good news as the market had anticipated that the company would suffer $6 billion in losses from Avandia. Troy Media is reporting today VIOXX caused 140,000 heart attacks that killed 60,000 people. It adds:
[F]ormer FDA medical reviewer Dr. David B. Ross stated, “industry has become FDA’s client. People at FDA know that they have to be careful about upsetting industry” and that “even if a product doesn’t work, . . . there is pressure on managers that gets transmitted down to reviewers to find some way of approving it.” Former FDA medical reviewer Dr. Robert L. Misbin, now deceased, likewise observed: “One of my superiors said something . . . I have never forgotten, that we have to maintain good relations with the drug companies because they are our customers.” In each case, these career government scientists spoke out, aware that doing so invited agency retaliation; FDA has a long, sordid history of retaliating against whistle-blowers.
I must wonder if Avandia really is another VIOXX. I would hope that another 60,000 deaths would be enough to get the U.S. Senate to pass meaningful protections for federal employee whistleblowers.
By the way, I have now learned that Dr. Misbin is not deceased. Troy Media erred both in reporting that his is "former FDA" and "now deceased." I received an email from him that you can read in the comments to this blog entry.
Two letters to the editor printed in today's Washington Post reminded me of a meeting I attended in May of the FAA Whistleblowers Alliance. One of today's letters was from the Potomac TRACON local of the National Air Traffic Controllers Association. The other letter, by FAA Administrator Randy Babbitt, extolled the virtues of the FAA's Partnership for Safety program which seeks "to encourage employees to speak up when they see a mistake or a safety issue." He adds, "Voluntary reporting is a key element of our safety culture . . .." I am glad that we agree on the need to have employees come forward with safety issues. I cannot help but think, though, that such programs would be more effective if all federal employees felt secure that they would be protected from retaliation. When federal employee whistleblowers have their cases limited to the Merit System Protection Board (MSPB) which rules in their favor in only 1.7% of the time, they would face a strong incentive to shut up and save their careers. To me, this is a good reason to support the House version of the Whistleblower Protection Enhancement Act (WPEA), HR 1507, to assure all federal employee whistleblowers that they can have access to our customary legal process of jury trials.
At the FAA Whistleblowers Alliance meeting, Gabe Bruno (standing in photo) spoke about regulatory capture. It is the phenomenon in which government agencies tend, over time, to align themselves with the industry they are supposed to regulate. He is a former FAA manager, and now an AIR21 expert. He was thinking about the FAA. I think about MMS and the Gulf oil spill. Gabe Bruno also spoke about the margin of safety. He handed out the chart pictured here (follow this link for a PDF version). The point is that we have aviation regulations to keep every day operations safe, and as far away as possible from the conditions that cause disasters. This is the margin of safety. Every time anyone violates a regulation, suppresses a maintenance need, or intimidates a whistleblower, we move one step closer to a catastrophe. Our margin of safety gets narrower. When Congress makes whistleblower protection laws stronger, we have a wider margin of safety. People have less fear of retaliation and are more likely to speak up. We might not know when or how, but over time, the wider margin of safety will save lives. Gabe Bruno also passed out a 2008 letter from the House Transportation Committee that reveals some of the regulatory capture problem at FAA, and two of his letters to the FAA about what that agency can do now to increase our margin of safety.
Moe Hamdan owns the upscale Washington restaurant called The Reserve on L St. NW. Instead of using the restaurant's income to pay the workers' wages, he used it for his own lavish lifestyle. Some workers went six months without being paid what they are owed. "I worked really hard as a bar boy at this restaurant," says former Reserve employee Luis Ducas, "and the owner refuses to pay me my back wages." D.C. Jobs with Justice's Arturo Griffiths says Hamdan owes workers over $25,000 in unpaid wages. Hamdan "has no intentions of paying his workers or even meeting with them" a former manager told Boaz Young-El, an AFL-CIO Union Summer intern. "He is unethical, immoral, and has no remorse for what he has done." So, when DC Jobs with Justice called on friends to literally blow the whistle at The Reserve this evening, my wife and I joined in. Management responded by calling the police. Officer A. O. Wilson came to the scene and said, "I have no problem with these protesters." Still, I have a problem with stealing workers' wages. It will be nice when police take wage theft as seriously as they take shoplifting.
My client, Dr. David L. Lewis, was a top microbiologist at the U.S. Environmental Protection Agency (EPA). He raised the standards for dental hygiene worldwide when he showed how previous practices were inadequate to protect dental patients from the transmission of HIV. He showed how EPA's rules for land application of sewage sludge did not have the scientific support needed to protect us from airborne diseases. Now the Environmental News Network (ENN) is reporting that in 1998, the EPA assigned Dr. Lewis to the University of Georgia in part to research the risks of crude oil spills from drilling rigs. Dr. Lewis was concerned that oil from a blowout could travel in deep sea currents to environmentally sensitive areas on all sides of the Atlantic. Anyone ever hear of the "Gulf Stream"? ENN is reporting that the Clinton Administration's EPA nixed the project. The EPA's Office of Water (OW), headed by Robert Perciasepe, coordinated with leaders of the biosolids industry (who were sore about Dr. Lewis' research on the dangers posed by their industry) to damage his reputation and get him fired in 2003. ENN says that EPA Administrator Carol Browner was sympathetic but was "overruled at the highest level." President Barack Obama appointed Browner to oversee energy and environmental issues, and appointed Perciasepe as EPA Deputy Administrator. It is too bad that we lost the opportunity to apply our top scientific talent to the problem of biological degradation of crude oil, and that those who sided with industry over our interests are again setting government policy. You can read Dr. Lewis' paper on his proposal to study oil spills, how EPA squashed it, and then squashed his career at EPA, by following this link.
I just had a delightful visit this morning from the Peace Warriors. They are a group of middle and high school students from the Southeast neighborhood of Washington, DC. They are spending the summer learning about how individuals can make a positive difference through nonviolent action. Today they learned about famous whistleblowers of history, like John Woolman (who blew the whistle on the slave trade) and modern whistleblowers, like Bunny Greenhouse (who blew the whistle on unlawful Halliburton contracts for the Iraq War). They learned how today's whistleblower advocates make their demands for better laws and treatment for whistleblowers, in part by signing up for our Action Alerts. Here are the Peace Warriors at the offices of the National Whistleblowers Center:
The Jamaica Gleaner News is reporting that parliamentarians pushing a new whistleblower protection are facing opposition. The majority's latest draft of the proposed bill will protect whistleblowers only if they have made their disclosures through certain official channels. If any officials in any of those channels happens to be one of the wrongdoers, whistleblowers will face a choice between angering their antagonist with ineffective disclosures, or making a wave with outside channels and losing legal protections. National security information could go only to the government minister, or prime minister.
Opposition Senator K.D. Knight objected to the bill's reliance on government officials to do the right thing. "I am most unhappy," he told the Gleaner. Member of Parliament Clive Mullings complains that requiring private sector employees to make disclosures to their employer for an initial determination before making other reports will discourage employees from coming forward. Ohio's whistleblower law, ORC 4113.52(A)(1)(a) has a similar provision that makes the law particularly weak. Whistleblowers need the freedom to raise their concerns through the channels that will be most effective for the circumstances they encounter. If a whsitleblower picks one means to raise concerns about illegality, don't we want to protect that whistleblower even if the employer might argue that another channel would be better? We should protect whistleblowers when they use any channel to raise a concern about any danger to the public.
I can imagine some Jamaican officials thinking that a whistleblower bill would be a good government thing to do. Then, when they get to writing the bill, people in power applied all their talent and resources to preserve their strings of power, and limit a whistleblower's opportunities to challenge them. I recall the United States Senate experiencing something similar with the Whistleblower Protection Enhancement Act (WPEA), S. 372. I am reminded of Frederick Douglass' famous words, "Power concedes nothing without a demand. It never did and it never will."
On Thursday, the Gleaner ran a letter to the editor by Christopher Pryce:
A whistle-blower is a person who exposes wrongdoing that is taking place in an organisation, or raises concern about some breach of conduct classified as violation of law, regulation or rule that can be a threat to the public interest, e.g. fraud, tax evasion, price-fixing, corruption, occupational safety violations.
And like all crimes, the impact extends beyond the company, organisation or the government. It reaches to and affects us all as entrepreneurs, as investors, as consumers, as employees, as citizens. Hence, we are all stakeholders in this matter and the widest possible public-education efforts should be undertaken to inform the citizenry, and cause the best insights and considerations to be presented to the joint select committee.
Last month, CNN's Special Investigations Unit released a story about Bobby Maxwell's experience as an inspector for the U.S. Department of Interior's Minerals Management Service (MMS). The main point of the story is how MMS was infused with a "culture of corruption," and its slipshod inspections missed opportunities to prevent the Deepwater Horizon explosion. The story also mentions that Maxwell is in the fifth year of a whistleblower lawsuit against Kerr-McGee. In that case, Maxwell won a $7.5 million dollar verdict against Kerr-McGee. After a judge threw out the verdict, he appealed. In 2008, the U.S. Court of Appeals for the Tenth Circuit agreed that Maxwell had a right to pursue his fraud case and reinstated the verdict. No doubt, Maxwell's status as a wistleblower, especially a whistleblower who has won his case, empowered him to speak out about the dangers of MMS' alignment with the oil companies instead of with the environment. No doubt, Maxwell raised his concerns years ago, but no one was listening until 11 workers lost their lives and the ecology of the Gulf of Mexico was ruined by this disaster. Maxell's story makes obvious how we would all benefit from giving our federal employees strong whistleblower protections. To me, this is the reason why our Senators must scrap the poison pills in their current version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and adopt the strong House version, HR 1507. Follow this link for more information about helping environmental whistleblowers.
I find it amazing when I look over these past seventeen years of having been involved with the National Whistleblowers Center and the law firm of Kohn, Kohn and Colapinto that we have not moved so much further ahead in this nation with protections for whistleblowers. In 1992 when I first approached the law firm of Kohn, Kohn, and Colapinto to represent me in my attempts to address the problems at the FBI crime lab, we were a nation in denial. Whistleblowers had a history of being dealt with brutally. And today the same brutality is evident in every whistleblower case the law firm and the NWC handles. Today I look at the BP disaster in the Gulf of Mexico as countless lives and resources are destroyed and know that somewhere in that group of people who brought this disaster on our nation, there were potential whistleblowers who said to themselves that the risks of blowing the whistle on BP malpractices were just not worth the dangers to themselves and their families. After all, this nation cares little for the rights and protections of individuals who would proactively stop such disasters. This lack of concern is reflected in the actions of our Congressmen and Senators, some of whom have labored hard and diligently to establish whistleblower protections while most ignore obvious safeguards for our nation, our citizens and our natural resources. If we do not wake up in the face of this, the worst environmental disaster in history created by lax standards by the British Petroleum Corporation, then we deserve what we get.
In our recent attempts to strengthen whistleblower protections we have even faced almost insurmountable barriers to whistleblower protections from President Obama's staff, in fact efforts to thoroughly gut whistleblower protections by that very staff. Present Barack Obama cannot be so blind as to believe that gutting whistleblower protections will do anything but lead to repeats in other forms of the BP environmental disaster we see going on now. And yet, as a nation, we maintain a society where individuals who would expose serious dangers to this nation are treated as criminals.
These many years later, I remain confused and saddened by this state of affairs, by the mistreatment of whistleblowers and the lack of protections for those individuals who would put the safety of this nation above the safety of themselves and their own families. In days gone by, these patriots would have been treated as heroes. Today, they are simply martyrs to lost causes. This is a shame on our nation, on our President and on our Congress.
The Washington Post is running a story today by David Hilzenrath on page A11 called, "Change in IRS rules could block rewards for whistleblowers." The story focuses on a manual by the Internal Revenue Service (IRS) called the Internal Revenue Manual (IRM). The new IRM recognizes that if a whistleblower provides information leading to a payment to the IRS, the whistleblower would be entitled to a reward of up to 30%. However, the revised IRM adds that if the information reduces a credit or stops a refund, then no reward is made. It also bars rewards arising from criminal penalties. My friend Michael Sullivan of Atlanta told Hilzenrath, "There's apparently an institutional resistance to rewarding whistleblowers that will take some time to dissipate." UBS whistleblower Bradley Birkenfeld (pictured) provided information the led to the bank's $780 million settlement with the IRS. His whistleblower claim with the IRS is pending while he serves a prison sentence for having followed the bank's orders in connection with the tax evasion scheme he revealed. Hilzenrath's story reports that Sen. Charles Grassley has written to the Treasury Department asking that it delay the IRM revision. Sen. Grassley was a proponent of the IRS whistleblower reward program. Hilzenrath quotes a former IRS official saying that the reward program is "unseemly." Perhaps when the IRS whistleblower program starts to bring in as much money as the False Claims Act does, then attitudes will change and the government will see the wisdom in promoting rewards as a way to increase revenue. You can support Birkenfeld's campaign for clemency by following this link.
Sen. Charles Grassley today released copies of his letters to 16 big pharmaceutical companies about their whistleblower policies. Bloomberg news service is also reporting on these inquiries. The letters review Sen. Grassley's efforts to strengthen the False Claims Act (FCA), and ask what the companies are doing to inform employees about the FCA, and then to protect employees who come forward with information about frauds. Sen. Grassley notes that since the 1986 amendments, the government has recovered $22 billion that had been obtained by fraud. He notes that Section 6032 of the Deficit Reduction Act (DRA) required contractors receiving over $5 million a year to issue written policies to employees about their rights under the FCA. The Bush administration then determined that this Section 6032 did not apply to pharmaceutical companies. Sen. Grassley disagrees, but still wants to know if the 16 biggest pharmaceutical companies nevertheless have the policies that would be required by Section 6032. Of the $22 billion recovered, Pfizer paid $2.3 billion in one settlement. Pfizer's Chris Lodertold Bloomberg that it is responding to the letter and “shares the senator’s desire to detect and report any false claims that may lead to unnecessary costs to our health-care system.” Pfizer, he said, has invested “substantial resources” to “create a compliance program that consists of mandatory training for every one of our employees, proactive monitoring and surveillance, and strict enforcement of all federal and state health-care laws.” I wonder if Pfizer is more highly motivated since it paid that $2.3 billion. Sen. Grassley letters are available in the continuation of this blog entryContinue Reading...